Thursday, February 4, 2010

For all Americans, 2010 is starting off as a watershed year for free speech. In the landmark Citizens United v. Federal Election Commission decision, the U.S. Supreme Court ruled corporations, labor unions, and other groups can spend money on political campaigns as part of their free speech rights. The Court struck down a law that threatened criminal charges if a corporation publicly presented a documentary about Hillary Clinton during an election cycle. The Court's majority opinion, written by Justice Anthony Kennedy, declares "under our law and our tradition it seems stranger than fiction for our government to make...political speech a crime."

In his opinion, Justice Kennedy attacked every doctrine that has ever attempted to belittle the importance of various aspects of free speech. He rejected the idea that less effective means of communication can be more intensely regulated than more effective means of communication, such as blocking a little-known documentary film but allowing newspapers and bloggers to freely endorse candidates at any time. He also rejected the notion that only viewpoint discrimination is bad and discrimination against specific speakers is okay, underscoring the reality that the same danger of censorship exists whether the government discriminates against disfavored speakers or disfavored ideas.

Justice Kennedy clarified what the First Amendment is and what it's not. He explained that it is fundamentally about preserving freedom from government restraint, favoritism and censorship, and the unfettered ability to communicate one's thoughts. The First Amendment is not about promoting equal time for all to speak.

Justice Kennedy also spelled out what "compelling state interest" justifies regulating free speech, and it is only the goal of preventing corruption or the appearance of corruption. Kennedy specifically said preventing "distortion" or excessive influence by wealthy or powerful factions is not a compelling reason for the government to regulate campaign speech.

Finally, Justice Kennedy underscored that the least restrictive means of regulation must be used when it comes to free speech. This conclusion is significant because there has been a movement away from this concept in other lawsuits towards a more vague definition of regulations being "narrowly tailored" to create a regulatory structure for each specific instance brought before a court.

In my opinion, there has not been a more important U.S. Supreme Court decision since Brown v. Board of Education.

Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute's Dorothy D. and Joseph A. Moller Center for Constitutional Government.